8 F. 643 -

8 F1d 643

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Case Text

PERRY V. PH<ENIX ASSURANCE CO.

64:3

3. This fund of $17,169.40 came into the hands of the respondent, as trustee, on the thirtieth day of April, 1879, and it was his duty, within a reasonable time, to invest it aLthe current rate of. interest, and to pay the income thererromsemi"annually to the complainant. He has, for more than two· years, neglected to do either; and he admits, in his testimony, that he. is insolvent. It is clearly the duty of the court, under such circumstances, to remove him from his trusteeship, and to appoint some suitabl-e person, whose duty it will be to. proceed to collect, from hiD'). and the sureties on his bond, the saId sum, with interest from the time it came into his hands. The interest, when collected, will be payable to complainant; the principal will be, by the.,trustee, invested at current rate of interest, as provided by 'thewill,and the semi-annual income will be by the trustee: paid to the complainant. 4. It appears in evidence that there is certain real estate in the.' county of , Illinois, which belongs to the estate of John der, deceased, the one-half of the income of which heretofore received by the respondent, if any, and also one-half of its income in the future, is payable to the complainant. It will be the duty of the trustee to proceed to collect from respondent and his sureties one-half of any income he .may have received from said real estate since the thirtieth day of April, 1879, and also to take measures to recover hereafter the portion or the income from said real estate which properly belongs to the complainant, and to pay the same over to him. Let decree be entered accordingly.

J.

A.

&

A.

J.

PERRY V. PH<ENIX ASSURANCE

Co.

(Circuit Court, D. Rhode Island.

1. :PLEADING-CONDITIONS

lSS1,J.

PnECEDENT-GENERAL A V"ElRlImNTB-DEMURRER. In an action on a policy of fire insurance, where the terms of the policy are set out in the declaration, and there is a failure to aver specific performance of conditions precedent, held, that the declaration is demurrable. Hdd,also, that the defect is not cured by a general averment of performance by the plaintiffs .' of all things by them to be performed.

Cour, D. J. This is an action upon a policy of fire insurance. The question before us arises under a demurrer filed by the defend. ant to the first count in the plaintiff's declaration. The main points raised by the demurrer are whether the count contains sufficient averments-First, as to the particular account of loss; and, second, as to the magistrate's certificate required to be given by the policy. The declaration, following out the terms of the policy, alleges, among other things, that the loss was payable"Sixty days after notice and proof of the same; upon condition that the plaintiffs, in case of such loss, forthwith gave notice of said loss to the company, and shall, Within 30 days, render a particular account of such loss, signed and sworn to by them, stating whether any and what other insurance has been made on the property, what was the value thereof, what was the plaintiff's interest therein, in what general manner said barn was occupied at the time of said fire, also were the occupants the same. and when and how the fire originated, as far as they knew or believed; and should procure a certificate under the hand and seal of a magistrate or notary public most contiguous to the place of the fire, and not concerned in the loss as a creditor of the plaintiffs or otherwise, or related to them, stating that he has examined the circumstances attending the loss, knows the character and circumstances' of the assured, and does verily believe that they have, by misfortune, and without fraud or evil practice, sustained loss and damage on the property insured to the amount of six hundred and nineteen dollars and seventy-five cents, ($619.75.)"

The plaintiffs aver the performance of these conditions, as follows:
"Of which loss the plaintiffs forthwith notice to said company, and, as soon as possible after said loss, to-wit, within 30 days after said loss, towit, on the twenty-third day of October, A; D. 1880, rendered the,defendant particular account of said loss, under their hands and verified by their oaths, and did also declare that no other insurance was made upon said property, and at the same time procured'the certificate under the hand and seal of Frederick A. 'Warner, a magistrate having a seal most contiguous to the place of the fire, not concerned in said loss as a creditor or otherwise, or related to the plaintiffs, and from inquiries made by him into the circumstances and origin of said fire and as to the value of the property destroyed, and he verily believed that the plaintiffs really and by misfortune, and without fraud or evil practice, had sustained by said fire loss and damage to the amount of the sum of six hundred and nineteen dollars and seventy-five cents, ($619.75 j) and the plaintiffs on the same day forwarded to the defendants, at their office at No. 54 William street, New York city, said certificatE'. And the plaintiffs further aver that thereafterwards, to-wit, on the sixteenth day of November, 1880, and at the request of the said defendants, did procure another certificate of Benjamin M. Bosworth, Jr., a magistrate haVing a seal and being nearest to the place of the fire, not concerned in the loss as a creditor or otherwise, or related to the plaintiffs, and from inquiries made by him into the circumstances and origin of said fire and as to the value of the property destroj'ed, and he verily

PERRY V. PHlENIX ASSURANCE CO.

beHeves that the plaintiffs really and by misfortune, without fraud or, evil practice, had sustained by said fire loss and damage to the amount named in paid certificate,-that is, the sum of six hundred and nineteen dollars and seventy-five cents, ($619.75,)-which certificate is made a part of this declaration; and the plaintiffs on the same day forwarded to the defendants, at their office at No. 54 William street, New York city, said amended and additional certifi-cate as aforesaid."

Then follows the averment that the plaintiffs "have in all things, kept, fulfilled, and performed all things on their part to be kept, ful·filled, and performed under the terms of said contracts, or in any manner connected with their said contract of insurance." It will be bere observed that while the plaintiffs state that they "rendered the defendant a particular account of said loss, under theirhands and verified by their oaths, and did also declare that no other insurance was made upon said property," they do not aver that this, account stated what was the value of the property, what was the plaintijf's interest therein, in, what general manner sa'id barn was occupied at the time of said fire; also, were the occupants the same, and when and how the fire originated, as far as they knew or bcliered. And it will further be observed that while the certificate of each of the magistrates conforms in substance to most of the requirements, yet that neither of them state that the magistrate knows the chamcter and circumstances of the assured, as required by the policy. By an almost uniform current of decisions in this country and in England, extendiug back to the first adjudicated cases upon the subject, it has been held that provisions of this character in a policy of fire insurance are conditions precedent, the performance of which must be shown to. entitle the assured to recover. By this policy of insurance the company agrees to pay the loss only upon conditions that the plaintiffs do certain things which the company deems essential for its own protection. It must appear, therefore, that each and all of these acts, as set out in the contract, have been discharged, or some legal excuse for non-performance given, before the plaintiffs have a right of action. Oldman v. Bewicke, 2 H. Bl. 577, note; Worsley v.Harvey, 20 Eng. Law & Eq. 541; Columbian Ins. Co. v. Lawrence, 2 Pet. 25, 50; also 10 Pet. 507; Wellcome v. People's Ins. Co. 2 Gray, 480; Campbell v. Charter Oak Ins. Co. 10 Allen, 213; Johnson v. Pha:nix Ins. Co. 112 Mass. 49; Dolbier v. Agricultural Ins. Co. 67 Me. 180; Home Ins. Co. v. Duke, 43 Ind. 418; Doyle v.Phmnix Ins. Co. 44 Cal. 265; Dlw'es v. North River Ins. Co. 7 Cow. 462; Rockford Ins. Co. v. Nelson, 65 Ill. 415, 418; May, Ins. § 586;, Phil. Ins. § 2026. And the failure to aver performance is fatal on demurrer.

646

FEDERAL REPORTER.

Chitty on Pleading, vol. 1, p.327, says: "The omission of averment of .ofa condition precedent, or·of an excuse for the non-performance, is fatal on demurrer." See, also, Home Ins. Co. v. Duke, 43 Ind. 418; Dolbier v. Agricultural Ins. Co. 67 Me.180. The plaintiffs contend, bowe"er, that the subsequent general averment that they have performed all things by them to be performed by tb terms of the contract is of itself sufficient. But the rule of the common law, as established by the foregoing and other authorities, is clearly the other way. That rule is as Chitty expresses it, (p. 985, note k:) "But if there be anything specific or particular in the thing to be performed, though consisting of a number of acts, performances .. of each must be particularly stated." The plaintiffs also argue that it was not necessary for them to aver performance of the various provisions which by the terms of th0 policy are required to be stated in the particular account, but that their simple allegation that they have rendered the defendant a particular account is sufficient. The policy declares that the particular account must contain statements as to other insurance, valne of property, interest of assured, manner the building was occupied at time of fire, who were the occupants, when and how the fire originated. Now it can hardly be flaid that an averment of performance which simply states that a particular account has been rendered, and only affirming one of the particulars, that relating to other insurance, is enough; because, from all that appears, the account may not have contained anything relating to the other material facts, and consequently upon the face of the declaration a case has not been made out. lt was held in Catlin v. Springfield Ins. Co. 1 Sumn. 434, that the words "a particular account of such loss or damage" meant, of themselves, simply a particular account of the articles lost or damaged, and in no way referred to the manner or cause of loss. The legal import, therefore, of these words does not embrace the other important facts called for under this head by this policy, and we are forced, therefore, to the conclusion that the allegation is ilisufficient. 'rhere can be no question but what the magistrate's certificate must be such as the condition requires. Columbian Ins. Co. v. Lawrence, 2 Pet. 50; Johnson v. Phcenix Ins. Co. 112 Mass. 49. By the failure in this case to aver knowledge of the character and circumstances of the assured, as laid down in the policy, the coucUtion is not complied with. The demurrer is, therefore, sustai:ed.

A county levied and collected taxes for the purpose of paying'interest on eel" tain' bonds issued by it, and thereafter litigation arose as to their validity, and an act was passed by the state legislature authorizing the county court to loan the fund collected, but not specifying the time for which loans might be made. A ldart Was made 'for four' years to A. Before the expiration of that time a bondhblderreoovel'ed final judgment against, the county, execution was issued, and A. was served with a writ ofgarnishmeIit. The garnishee answered that the debt from b,:er to the county was not due, and stateli the facts. It was held: (1) that said aqt O\I).ly. author}:,;ed the county court to invest the fund in ques-, to call, or until the litigation was concluded; (2) that if construed tion to authorize loans for a longer period it would infringe the obligations of the county's contract with its bondholders, and be unconstitutional; (3) that said flj.nds, wpen paJd into ,the county treasury, became. trust funds for the payment of interest upon said bonds, and that it was the .duty of the comity authorities to apply them to that purpose as soon as the bonds were held valid; (4) that A. should be pl'esumed to have known the provisions of the statute under which the loan was made, and that the plaintiff was entitled to judgment against her for the !?um borrowed, and any thereon which mIght be unpaid.

Overall, Judson rt Tutt, for plaintiff. H; A. Ounningham, for defendant. MCCRARY, C. J. Execution was issued upon a judgment rendered in this court on the twenty-first day of October, 1878, in favor of the plaintiff and against Rallt! county. Under that execution Nannie P. Mitchell was served with process of garnishment. The garnishee files an answer, from which it appears that on or about the twentieth day of June, 1880, she borrowed of the county of Ralls $400, payable four years after date, with interest at the rate of 6 per cent. per annum, and gave, in payment of such loan, a bond as follows:"BOND FOR TIIE PAYMENT OF RAILROAD FUNDS.

"Know all men by these presents, that we, Nannie P. Mitchell, as principal, and E. P. Ralls and George E. Frazer, Jr., as securities, jointly and severally bind ourselves and onr respective heirs, executors, and administrators to the county of Ralls, state of Missouri, in the sum of four hundred dollars, to be paid to said county for the use and benefit of the St. Louis & Keokuk Railroad interest fund of said county, to the payment whereof we jointly and severally bind ourselVeS, our heirs, executors, and administrators firmly by these presents. Sealed with our seals and dated the twentieth day of June, A. D. 1880. "The conditions of this bond are that whereas the said Nanllie P. Mitchell, principal, has this day borrowed from said county the sum of four hundred dollars, belonging to the railroad interest fund of said county, which said sum